‘The revival of fantasies and myths’ about human rights and the common law is creating ‘a poisonous cocktail that threatens to destroy modern England’, said barrister and human rights law professor Conor Gearty last week.
Delivering the annual Corbishley Lecture at the London School of Economics, Gearty, who advised Tony Blair’s Labour Government prior to the passage of the Human Rights Act 1998, was scathing in his criticism of senior judges and government politicians for their propagation of these myths.
‘A new era of vulgarity’
The lecture came in the context of an increasingly toxic debate about the role played by Strasbourg, home of the European Court of Human Rights. Under section 2 of the Human Rights Act, British courts are required to ‘take into account’ Strasbourg judgments when deciding cases. Gearty sought to correct the ‘myth that Strasbourg cases are required to be followed by British courts’. He criticised British judges and politicians, whose recent ‘abuse’ of the European Court amounted to a ‘new era of vulgarity’.
Strasbourg has a record of admitting when it has made a mistake, said Gearty, and regularly takes UK Supreme Court judgments into account. He cited the example of Strasbourg’s agreement with British courts in finding ‘kettling’, the controversial police containment tactic, to be legally compatible with protesters’ human right to liberty.
Common law myths?
Gearty criticised the myth that human rights had their origin in the ‘common law’. He also doubted what he termed ‘the myth of Whiggish inevitability’, according to which ‘everything is going to be fine because of a trajectory that tends towards perfection’.
The common law is a centuries-old system that allows judges in common law countries, such as the UK and Australia, to create ‘judge-made law’ in addition to laws made by Parliament. Disagreeing with a speech by Lord Neuberger, the current President of the UK Supreme Court, Gearty reminded his audience that common law judges had historically opposed trade unions and racial and sexual equality.
The politically divisive issue of prisoner voting rights has become one of the biggest obstacles to a harmonious relationship between Britain and Strasbourg. In a 2001 decision, the English High Court found a blanket ban on prisoner voting to be compatible with prisoners’ human rights. Strasbourg disagreed with this English judgment in Hirst v UK, a 2004 case that has become synonymous in Britain with hostility towards human rights legislation. A recent case by Scottish prisoners seeking to overturn the ban was once again rejected by the UK Supreme Court.
According to Gearty, the fact that British domestic law does not require the judgment in Hirst v UK to be implemented refuted the myth of ‘Strasbourg supremacy’. He went on to warn that failure to implement the decision, by giving prisoners at least some voting rights, might set a dangerous example for countries like Russia and Syria to ignore human rights in future.
Dialogue, not dictatorship
Gearty throughout echoed the popular academic theory of ‘inter-institutional dialogue’. Whether between the UK Supreme Court and Parliament, or between the British courts and Strasbourg, ‘Informed observers call this dialogue, not dictatorship,’ Gearty said.
Responding to a question from cross-bench peer and chair of the Low Commission, Lord Low of Dalston, Gearty said that the UK courts had a particularly good record of developing their judicial review powers. In recent years the courts have used these powers to constrain and prevent the Government from deporting people in cases that risk breaching the deportees’ human rights.
The myth of the apolitical judge
Throughout the lecture Gearty was unrelentingly critical of the senior English judiciary, whom he characterised as a ‘tiny community that reinforces itself, and maintains a nostalgic reverence for the common law’. The credibility of the judiciary had suffered following the departure of high profile progressive judges, he said, including the late Lord Bingham. Gearty cited Lady Hale as a prominent exception in view of the fact that she had been to state school, was a woman, and had actually studied law.
The lecture saw Gearty attempt to skewer the ‘myth of the apolitical judge.’ He pointed to the increase in judges giving speeches and writing books in their personal capacity, and highlighted the tendency of such interventions to look to the past for solutions to present day problems. ‘Going back to basics is not a-political; it’s political. By attempting to eschew politics, [these judges’] conservative position is being disguised by their judicial garb’, said Gearty.
Increasing inequality under the guise of law
Gearty lambasted the current Government’s introduction of fees for employment tribunal claimants, and said that the damages available were often not worth going after. ‘This has had the effect that the rich are now more able to act with impunity’ he said. ‘The decline of trade unions and collectivism is responsible for growing inequality, a process that has happened under the guise of law.’
Gearty ended his lecture by outlining the final myth: that Britain remains a dominant world power. ‘The Conservative Party increasingly gives the impression that the Act of Union with Scotland was the beginning of a heroic English age of empire, to which we can now return,’ he said. ‘Down that route lies a provincial backwater peopled by well-educated fools shouting loudly. No judge should be supporting this, especially now as it gathers such a populist head of steam.’
Franck is a pupil barrister at Garden Court Chambers